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NEW DANGERS 
TO MAJORITY RULE 



ADDRESS 



JUDSON KING 

BEFORE THE POLITICAL SCIENCE CLUB OF 

THE UNIVERSITY OF WASHINGTON 

MARCH 6, 1912 



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PRESENTED BY MR. CHAMBERLAIN 

August 5, 1912. — Ordered to be printed 




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AUG 15 191? 



NEW DANGERS TO MAJORITY RULE, 

A COMPARISON OF THE "CHECKS AND BALANCES'* OF THE CON- 
STITUTION WITH THE "SAFEGUARDS AND RESTRICTIONS'* PRO- 
POSED FOR THE INITIATIVE AND REFERENDUM. 



Among the arguments advanced against the adoption of the initia- 
tive, referendum, and recall there is one which must strike the average 
American citizen with astonishment. We are warned that if the 
people secure these powers, especiallv the constitutional initiative 
and judicial recall, the rule of tne majority will be established, and, 
perforce, what will become of the helpless, unprotected minority? 

President Taft, in his famous Arizona veto, used this language: 

Hence arises the necessity for a constitution by which the will of the majority 
shall be permitted to guide the course of government only under controlling checks 
that experience has shown to be necessary to secure for the minority its share of the 
benefit to the whole people that a popular government is established to bestow. 

United States Senator Henry Cabot Lodge admires the Constitu- 
tion of the United States because it protects ''the rights of the indi- 
vidual man and of the minority against the possible tyranny of the 
majority," and then quotes, with great approval this statement of 
Lord Acton : 

Whilst England was admired for the safeguards which, in the course of centuries 
it had fortified liberty against the power of the Crown, America appeared still more 
worthy of admiration for the safeguards which * * * it had set up against the 
sovereign power of its own people. 

President Nicholas Murray Butler, of Columbia University, New 
York City, in a recent address before the Commercial Club of St. 
Louis, denouncing direct legislation, said: 

We point to the fundamental guaranties of the British and American Constitutions 
and say that these are beyond the legitimate reach of any majority. * * * 

This is not the kind of popular government which the American 
people have believed they possessed. From the beginning it has 
been one of their most cherished political traditions that, whatever 
limitations the Governments of other lands placed upon their people, 
in the United States a majority of the people ruled. The Constitu- 
tion was not above them. "We, the people, establish" — ran the 
preamble, and Americans believed it. In school and college text- 
books, from the press, platform, and pulpit, from the cradle to the 
grave they have been taught that our constitutions, national and 
State, were expressly designed to protect them in the right of the 
majority to alter the Government, or abolish it, and establish any 
other they saw fit. 

So great has been the reverence of our people for this form of gov- 
ernment, so deep-seated their belief that it was the best the wit of 
man could devise, that until recently they have turned a deaf ear lo 
any proposal to modify it. 



4 NEW DANGERS TO MAJORITY RULE. 

When corruption arose and legislative bodies betrayed their trusts, 
the people did not lay the blame upon the system itself. They sought 
by constitutional limitations to restrict the powers of legislatures. 
They formed new parties and endeavored, by the election of honest 
men, to gain control of their Government. In recent years they have 
tried in a thousand ways to eliminate the political boss, the briber, and 
the lobbyist. But in spite of their efforts they have seen this Govern- 
ment, State and National, steadily pass under the control of the great 
financial and commercial interests, and the American people now know 
that they are .not the masters of their own Government, but are 
actually ruled hj a very small minority indeed. 

Taught by failure the weaknesses of the uncontrolled repre- 
sentative system, the people are now preparing to insure majority 
rule by direct exercise of the law-making power whenever the}'' 
see fit to exercise it. If the legislature fails to prepare and sub- 
mit amendments to the Constitution desired, or enact the laws 
demanded, the people will propose such amendments or laws by 
initiative petition and enact them at the polls. If the legislature 
enacts laws not desiied by the people, they can be suspended by 
referendum petitions from taking effect, and a vote taken upon them 
at the following general election. If a public official becomes corrupt 
or incompetent, a recall petition can be circulated, an election held, 
and he be immediately discharged and another man elected to fill 
his place. 

Already several States and a large number of cities have secured 
these powers. Their direct object is to establish the rule of the 
majority. It is the only method by which that rule can be established. 
The interests can always reach a small delegate body, but they can 
not control the whole people. 

And now, when this movement toward genuine popular govern- 
ment seems likely to sweep the country and be established in every 
State within a few years, we are flatly told by the President of the 
United States, famous as a jurist, and by high constitutional author- 
ities that the people have no right to such powers and that the Con- 
stitution of the United States is expressly designed to prevent the 
majority from ruling the minority in certain particulars, which they 
fail to specify. 

Which of these two theories, then, is right ? Is it possible that the 
people of this country have been under a delusion concerning their 
own form of government all these years ? However much we may 
dislike to have our cherished traditions and beliefs shattered, if we 
examine the matter with unprejudiced minds we shall find that 
President Taft, Senator Lodge, and all the others are quite right. 
More than that, the Constitution was not only designed to protect a 
certain minority, but to give that minority controlling power in Gov- 
ernment — State and National. 

Within the last few years there has arisen a group of scholars who 
are telling the truth about the inner import of the Constitution. 
Among them none ranks higher or has done more telling service in 
the cause of the people than Dr. J. Allen Smith, of Washington Uni- 
versity. His great book, ''The Spirit of American Government," 
has been a revelation to thousands of thinking men, because it sets 
forth clearly what really happened at the constitutional convention 
of 1787 — and what is the real reason why our State governments are 



NEW DANGEES TO MAJORITY EULE. 5 

SO unresponsive to the will of the people. Concerning the underlying 
motive of the men who framed the Federal Constitution he says: 

They recognized very clearly that there was a distinct line of cleavage separating 
the rich from the poor. They believed with Hamilton that in this respect "all com- 
munities tend to divide themselves into the few and the many," that the latter will 
tend to combine for the purpose of obtaining control of the Government, and, having 
secured it, will pass laws for their own advantage. This, they believed, was the 
chief danger of democracy — a danger so real and imminent that it behooved the few 
to organize and to bring about, if possible, such changes in the Government as would 
protect the minority of the opulent against the majority. This was the purpose of 
the system of checks by which they sought to give the former a veto on the acts of 
the latter. 

In an illuminating chapter on the "Checks and balances of the Con- 
stitution" Dr. Smith discusses the complex system of restrictions by 
means of which the propertied minority was to control the numerical 
majority. Among these of direct import to this discussion we may 
note: 

1 . Amendment was made practically impossible by requiring a 
two- thirds majority of each House to propose and a three-fourths 
majority of the States to adopt any change. ''One-twentieth part of 
the people could prevent the removal of the most grievous oppression 
by refusing to accede to amendments." 

2. The judiciary was made irresponsible to the ]3eople, and the 
way opened for it to exercise enormous powers, by "interpretation" 
and veto of statutes. 

3. The President and Senate, by a process of indirect election, 
were made as little responsible to the people as possible, and then 
given the preponderating power in the Government — this as a 
direct check upon the lower house, which was expected to be radical. 
That is, the minority could control all legislation "initiated" by the 
people's direct representatives. 

4. No adequate system of publicity of the doings of Congress and 
the Government was provided for, and the people were to be kept in 
ignorance. 

Ihe unpleasant truth, then, is that the people had the name and 
form of popular government, which theoretically allowed them to 
rule, but the instrument was so cunningly devised that practically it 
was impossible for a majority to actually carry its will into eflf'ect. 
The Constitution was, as has been aptly said by a distinguished 
writer, "A coup d' etat of the propertied classes." It has more than 
fulfilled the expectations of its creators. Says Prof. Smith: 

The so-called evils of democracy are very largely the natural results of_ those con- 
stitutional checks on popular rule which we have inherited from the political system 
of the eighteenth century. It would do much to advance the cause of popular gov- 
ernment by bringing us to a realization of that fact. 

The propertied classes then constituted that sacred minority which 
the guaranties of the Constitution were designed to protect. And 
to-day it is the servants of and apologists for the propertied classes 
of our own time, in State and college and editorial sanctum, which 
defend these guaranties. In the old time they denied suffrage to the 
veterans of the Revolutionary War unless they owned property. 
The very men who made America possible were denied a \oice in its 
Government. In our time the propertied classes ha\e fought the 
Australian ballot, the direct primary, the corrupt-practices acts, the 
direct election of Ssnators, the presidential primary, but especially 



6 NEW DANGEES TO MAJORITY KULE. 

is tlieir wrath aroused over the proposal for the initiative on consti- 
tutional amendments and the recall of judges. Their supremacy 
in the commercial and political world lies in their control of the mak- 
ing and interpreting of constitutions. They know that with these 
powers in the people's hands, beyond the reach of seduction and 
bribery, the way is clear for the rule of the numerical majority. 
This is the secret of their opposition. 

I have called your attention to this phase of our national history to 
emphasize the truth that all is not democracy that goes by that name; 
that theory is one thing and practice another; that the govern- 
mental machinery by which the rule of the people is to be secured is 
of equal importance with the principles of republican government. 
The lesson is of importance to us because democracy is in identically 
the same danger to-day from abortive forms that it was in the 
eighteenth century. 

The same influences in government which secured the insertion of 
"checks and balances" in the Constitution, State as well as National — 
for we must not forget that the State governments were modeled on 
the National — now "propose to prevent the rule of the majority by 
means of ''safeguards and restrictions" placed upon these new tools 
of democracy — the initiative and referendum. They are succeeding 
well, and if we are not careful the people will be as helpless under 
this system as under the uncontrolled representative system. iVlready 
14 States have direct legislation in some form, and in 7 of these it is 
of little or no practical value. 

It is to the practical results of these ''safeguards and restrictions" 
to which I wish to direct your attention, since they constitute the 
new danger to democracy. 

The Constitutional Initiative. 

Whenever a constitutional amendment providing for the initiative 
and referendum is under consideration in a State legislature the 
one thing most bitterly contested by the corporation politicians is the 
ri^ht of the people to propose amendments to the Constitution by 
initiative petition and adopt them at the polls. The motive is per- 
fectly clear. The privileged classes — that is the "minority" for 
which President Taft is so solicitous — are secure in their privileges 
so long as they are protected by constitutional barriers. Statute 
law can not touch them. Let the people tr}^ to regulate railroad 
rates, establish equitable taxation, protect labor, curb the power 
of corporations, and quickly they find themselves, in popular par- 
lance, "up against" the Constitution. If such laws are passed they 
are quicldy attacked as "unconstitutional," and the Supreme Court 
becomes the real legislature. In New York it is unconstitutional for 
the State to establish a nine-hour work day for women in certain 
employments. In Kansas it is unconstitutional for the State to own 
ancl operate oil wells. And so on ad infinitum. But the people can 
not vote upon a change in the Constitution unless permitted to do so 
by the legislature. In many States this requires a two- thirds vote; 
that is, a minority can prevent a change; the progrsss of the people 
is checked. And if we examine the methods of submitting amend- 
ments we shall find them as a rule made verv difficult. 



NEW DANGEaS TO MAJOEITY BTJLE. 7 

But under the '' initiative '^ the people could secure desired changes 
within a short time. No power of money or politicians could stop 
them. Therefore, the objection to the constitutional initiative, j. 

Hence, when you read that some State has triumphantly secured 
the rule of the people by adoption of the initiative and referendum, 
remember to inquire if the constitutional initiative is included. If it 
is not, that State is not free, and the most essential thing to demo- 
cratic government has been omitted. 

An Impossible Majoeity. 

The next most important ''safeguard" demanded by the reaction- 
aries and dangerous to popular government is to require an impossible 
popular majority for the adoption of initiated measures or the rejec- 
tion of acts of the legislature under the referendum. Let me illus- 
trate this point by concrete examples. 

Initiative and referendum measures are usually voted upon at gen- 
eral elections. A space at the bottom of the ballot is reserved for 
measures, and candidates are voted upon above. 

In Oklahoma it is provided that all measures sutmitted by the 
legislature or by initiative petition, to be adopted, must receive a 
favorable majority of all votes ' ' cast in said election." Since the adop- 
tion of the constitution in 1907 five important measures which received 
majorities of from 27,994 to 58,503 of the voters casting votes on 
these measures were lost because they did not get the required major- 
ity of all the votes cast for candidates. Not a single measure has been 
passed under this requirement at a general election, and in Oklahoma 
the initiative is recognized to be practically a dead letter. 

Let us see what this thing means. I have here a table of these 
votings. 

Popular vote on measures submittedin Oklahoma election, 1908. 
[L. Submitted by the legislature. I. By initiative petition. R. By referendum petition.] 



Yes. 



No. 



Majority 
approving. 



Majority 
rejecting. 



Per cent 
voting. 



Agency system (L.) 

Torrens land system (L.) . 
Location State capital (L.) 

Model capital city 

Sale of school lands (I.) . . . 
Total vote, 257,240. 



105,392 
114,394 
120,352 
117,441 
96,745 



121,573 
83,888 
71,933 
75, 792 

110,840 



30, 506 
48,419 
41,649 



16, 181 



14,095 



Popular vote on measures submitted in Oklahoma election, 1910. 



Yes. 



No. 



Majority 
approving. 



Majority 
rejecting. 



P er cent 
voting. 



Pro rata distribution corporations' school tax (L.) 
Amendment permitting railroads to consolidate 

(I-) 

Bill establishing model capital city (L.) 

Woman's suffrage amendment (I.) 

Local option amendment (I.) 

Election law (R.) 

Total vote, 254,730. 



101,636 

83, 169 
84, 336 
88,808 
105,041 
80, 146 



43, 133 

55, 175 
118,899 
117,736 
126,118 
106,459 



58,503 
27, 994 



34,5.33 
39,880 
20,077 
26,313 



57 



O NEW DANGERS TO MAJORITY RULE. 

By it we find that an average of 75 per cent of the citizens vote on 
measures submitted to them. It varies from 54 to 91, the average is 
75 per cent. That is to say, the will of a majority of the active, 
intelligent voters concerned for the public welfare was defeated by 
the 25 per cent of careless, ignorant, or indifferent voters who failed 
to vote upon them at all. But in this same election, as everywhere 
in America, every candidate was elected to office if he received, not a 
majority, but a plurality of the vote cast, upon the office for which he 
was running. 

Contrast Oklahoma with Oregon. In Oregon measures submitted 
to the people are enacted or rejected by a majority of the votes "cast 
thereon." Since the adoption of the initiative and referendum in 
1902, 29 measures have been approved by the people, 20 of which 
would have been lost had the Oklahoma provision been in efl'ect. 
Among them we note the local-option law favored by the temps^'ance 
forces, the home-rule amendment for cities favored by the liquor 
interests, the recall of public officials, the presidential primary, the 
corrupt-practices act, the municipal and county initiative and refer- 
endum, the people's control of constitutional conventions, the 
judiciary reform bill and three-fourths jury verdict, the employers' 
liability bill, the good-roads amendment, the new insane asylum, 
and so on. 

In short, a large proportion of the reforms by which Oregon has 
routed the political bosses and achieved fame as a State governed by 
its people would have been lost had tliis little "joker" requiring a 
majority of all votes cast been allowed to go into the direct legislation 
provision, instead of a majority of all votes cast thereon. The 
tremendous progress made against the terrific opposition of the 
railroads, the corporations, and political machines would have been 
blocked, not by intelligent opposition, but by a "safeguard" — the 
effect of which is to virtual!}" have counted against progressive 
measures the ignorant and careless who do not care a button about 
good government. 

Because these important measures did not receive an absolute 
majority of all the votes cast for candidates, or of all the voters in the 
State, the eminent gentlemen we have quoted heretofore and others 
throughout the country are warning against the grave danger of 
"minority rule." 

Let us pause here to inquire what class of voters do not vote upon 
measures. In the election of 1908, in the notorious "Silver Moon" 
precinct in Cincinnati, there were cast 496 votes for President and 
17 on the taxation amendment. In "Bucktown" (colored) there 
were 308 votes for Taf t and Bryan and 1 vote on the taxation amend- 
ment. Judge Thomas McBride, of the Oregon Supreme Court, tells 
me that once he examined every ballot cast in Multnomah County, 
in which Portland is situated, to determine a disputed election. 
Being interested in this very question, he took note and found the 
lightest vote cast on measures was in the slum wards and foreign sec- 
tions of the city. This is the testimony of similar observers through- 
out the country. On the liquor question alone it does not apply. 

The irresistible conclusion is that the 75 per cent of voters who, in 
the average of cases decide issues, constitute the intelligent, active 
citizenship of the State; the men who do things. They do things 
the bosses and "propertied minority" and Senator Lodge do not 



NEW DANGEKS TO MAJOEITY RULE, 9 

want done — the election of United States Senators by a vote of the 
people, for example. The testimony shows that the 25 per cent 
who do not vote on measures are the ignorant, indifferent voters. 
And yet the very men who object most strenuously to the initiative 
and referendum in the hands of the people because of their alleged 
ignorance and instability demand that the most ignorant and most 
indifferent be given influence in the decision of questions in which 
they are not interested enough to cast a ballot upon. 

Minority Rule. 

When Senator Ijodge makes that as an argument against the rule 
of the people by the initiative and referendum I should think the 
words would burn his tongue. For a generation a majority of 90 
men in the Oregon State Legislature throttled progress in that State, 
and its corruption was a stench in the nostrils of the Nation. In 
1910 an average of 88,742 free, uncorrupted citizens cast their ballots 
upon the measures submitted. Is a majority of 90 men greater, 
wiser, safer, more honest than a majority of 88,000 men? Is a 
majority of any State legislature in this country safer than a majority 
of even half the voters of that State ? 

No the American people are not prepared to be frightened at this 
talk of "minority rule" when public issues are settled in an open field 
and a fair fight with every citizen given opportunity to express his 
will. But there is another kind of minority rule they do fear and 
which they propose to end. Why does not Senator Lodge decry that 
sort of minority rule by which one political boss controls a city council 
and barters away franchises worth millions of dollars ? By which 
half a dozen corporation lawyers control a State legislature and one or 
two gigantic combinations of capital control the Congress of the 
United States ? Let him answer that and we will have more confidence 
in the sincerity of his opposition to direct legislation and his fears of 
minority rule. 

First fix your constitution favorable to the propertied minority and 
then make it difficult or impossible to amend is the demand of the con- 
servatives. Eleven States have tried out the ''majority of all votes 
cast in the election" safeguard. What have been the results ? Prof. 
Dodd in his able work on ''The Revision and Amendment of State 
Constitutions " tells us that it "has made constitutional revision 
practically impossible." No amendment has been adopted in Indiana 
since 1881, nor in Nebraska since 1881, nor in Ohio since 1851, by this 
system. Out of 15 questions submitted to the people of Illinois from 
1896 to 1910 only 4 received a majority of all votes cast; and amend- 
ments of vast importance which received majorities thereon of over 
300 000 were lost. 

This "safeguard" of a majority of all votes cast is the most deadly 
"joker" that can be inserted in any amendment. All the patriotism, 
education and effort under Heaven can not arouse that class of apa- 
thetic voters who are by this system without their knowledge placed 
as a barrier in the way of progress. Curiously enough it bears a strik- 
ing resemblance to that "check" in the Constitution which permits 
one-third of the Members of Congress to prevent the submission of an 
amendment, since in this case one-third of the vote cast on a measure, 
if cast against^ will defeat it. And again the 25 per cent who do not 



10 NEW DANGERS TO MAJORITY RULE. 

vote parallel the one-fourth of the States which can defeat the adoption 
of an amendment when submitted. 

A man who does not exercise his right to vote upon a question should 
not be permitted to influence the decision one way or another. 
Abraham Lincoln, in his opinion on the admission of West Virginia, 
stated the case most clearly, and his argument is unanswerable. He 
said: 

It is a universal practice in the popular elections in all these States to give no legal 
consideration whatever to those who do not choose to vote, as against the effect of the 
votes of those who do choose to vote. Hence it is not the qualified voters, but the 
qualified voters who choose to vote, that constitute the political power of the State. 

Petitions. 

Under the system established by the founders "of our National 
Government we have seen that a minority of one-fourth of the 
States could defeat any constitutional amendment. For statute 
laws passed by a majority of the two houses of Congress there was a 
veto provided for the President, and the two-thirds majority required 
to pass a measure over his veto or to impeach him, thus giving the 
one-third minority power to block progressive legislation. And 
after that came the Supreme Court with power to veto by the word 
"unconstitutional or to destroy by interpretation. The Standard 
oil case, of recent date, is a shining example. All these barriers 
correspond, in the representative system, to the "majority of all 
votes cast" under a du^ect legislation system. 

The next thing of importance to the fathers was to make the initia- 
tion or start of any measure as difficult as possible. This was ac- 
complished by requiring a two-thirds vote in each House and approval 
of the President necessary to submit an amendment to the Constitu- 
tion, a rule adopted in most States. In actual practice it has proven 
very effective and practically prohibitive on the most vital issues. 

Under direct legislation, the power of initiative is taken from the 
legislature and placed in the people. The people can start things 
going by popular petitions. The obvious thing then, for the con- 
servative, is to make it just as expensive, difficult, and burdensome 
to secure these petitions as possible. The people will speedily become 
discouraged if this is done, and the power of the initiative minimized. 
Hence it is argued that petitions must be large. They must be dis- 
tributed widely over the State; they can not be freely circulated, but 
the voters must go to the courthouse to sign them; and so on. It is 
assumed that these petitions will be signed as easily as those of the 
old style begging sort, and that unless the petition is "carefully safe- 
guarded" the ballot will be flooded with crank proposals and the 
State be put to enormous expense for their submission. 

It is one of those rare instances in which a political boss becomes 
suddenly solicitous for public economy. We must remember that 
strict requirements are made in every State where the initiative and 
referendum are in operation, that every sheet of signatures must be 
sworn to before a notary, and that the solicitor believes every signer 
to be a voter. Also that whole petition must be checked carefully by 
the State officials and compared with the registration books, and 
thousands of signatures are thrown out because they are illegible or 
technically imperfect. 




NEW DAN GEES TO MAJOHITY RULE. 11 

An 8 per cent petition in Oregon requires about 8,500 actual verified 
signatures and, unless promoted by a powerful organization, costs 
$1,500, in addition to the volunteer work. But a 10 per cent unveri- 
fied petition in Illinois, asking for an advisory vote on three popular 
propositions, filed in 1910, required 115,500 signatures and cost 
nearly $10,000. To get this petition under Oregon conditions would 
have cost $20,000. The notary seals alone would have cost over 
$2,500. I pause here to say that in Illinois it is ninety times as easy 
to put a candidate for a State office in the running as it is to put a 
popular law in the running for a mere advisory vote ; that is, to ask 
the legislature to enact it. 

If an expression of the public will is a desirable thing, and if the 
people are to be encouraged and not discouraged in civic activities, a 
petition should require only sufficient signers or "seconds" to warrant 
taking a vote. The petition decides nothing; it is merely a ''motion" 
similar to that employed in parliamentary bodies to get a question be- 
fore the house for discussion and decision. It should be large enough 
to prevent trivial or unimportant questions being submitted, but not 
so large as to go beyond the reach of that body of patriotic citizens, 
interested in good government, with little organization, of small 
means, and no ax to grind or selfish interest to promote. No possible 
petition within reason can bar out the railway companies, the corpora- 
tions, the brewery interests, or the well-organized temperance forces 
with the churches at their command. To require high petitions 
simply places the use of the initiative and referendum in the hands 
of the wealthy classes who can afford to hire solicitors in large num- 
bers. 

Next to a large petition the most effective ''safeguard" to hamper 
its effectiveness is to require its distribution. This forces the pro- 
moters of a petition to get, as in Montana, the required per cent in 
each of two-fifths of the counties of the State. Hence they must 
leave the populous centers and go to the agricultural sections, where 
the people are widely scattered and the cost and trouble is enormously 
increased. This "joker" effectually prevented the success of several 
petitions circulated in Montana between 1906 and 1911. It has been 
adopted in Nebraska and in Ohio in modified forms, and unless it is 
excluded from amendments will become one of the most successful 
methods of blocking progress. 

The right of petition has cost humanity a long struggle. It is 
embedded in all American constitutions, and no one would dare to 
question it. So long as it is a mere request it does not trouble the 
corporations. But when it is proposed to give legal force to a peti- 
tion and make it impossible that it be ignored; to give the people the 
power to decide upon its worth and clothe it with the authority of con- 
stitutional or statute law, it is quite another matter; it is fought to 
the death, and when no longer able to withstand the movement for 
its elevation to dignity and power, the politicians seek to deprive it of 
its effectiveness by so-called "safeguards and restrictions" — for fear 
perchance that the people might be overburdened. 

The "Emergency Clause." 

The "interests" justly regard the initiative, especially the initiative 
on constitutional amendments, as the most dangerous to their control 
of government. Their greatest concern is to maintain the status 



12 NEW DANGEKS TO MAJORITY RULE. 

quo and they know this can not be done with the initiative in the 
hands of an intelhgent and patriotic people who are determined to 
place the rights of humanity above the rights of a few millionaires 
to make money. It is the call of the twentieth century and con- 
stitutions must make way. 

But it is also highl}^ desirable now and then for the politicians and 
corporations to pass new laws favorable to their interests, to secure 
some franchise, or alter some existing law. Therefore it becomes 
necessary to destroy the referendum by indirection since with an 
effective referendum in hand the voters can veto their proposals. 
Let us examine the ways in which this can be done and has been done. 

First; it can be provided that all laws passed by the legislature on 
certain subjects shall be exempt from the referendum. Secondly, it 
may be provided that when a referendum petition is filed against a 
law, the law shall not thereby be withheld from going into operation, 
but shall continue effective until a vote is taken and it is repealed by 
the people. This will allow the law to operate for over one year 
usually, and in case of a transfer of valuable public i^roperty, or 
granting a franchise, the repeal would come too late. Thirdly, since 
the usual amendment forbids laws passed by tlie legislature to go 
into operation for 90 days after passage in order to give opportunity 
for referendum petitions to be filed, an "emergency clause" is pro- 
vided which allows a law to go into instant operation when the 
legislature declares such law is "necessary for the immediate preser- 
vation of the public peace, health, or safety." If the "emergency 
clause" simpl}:- permits quick operation but keeps the measure still 
subject to a vote of the people later, well and good. But if it is so 
drawn that an "emergency measure" is exempted from the operation 
of the referendum, and that b}^ a majorit}^ vote, the real power of the 
referendum is lost and the people are powerless against the legisla- 
ture. Six States have this sort of a referendum clause in their con- 
stitutions. In South Dakota 40 per cent of the laws are passed as 
"emergency laws." This, then, is the way to have the referendum 
and not have it. 

The Arbitrary Limit. 

Still another "restriction" which we are likely to hear much of in 
the future is to set a definite limit to the number of questions which 
may be submitted at any one election — say, 5 or 10. Then, when- 
ever important ])rogressive measures are likely to be initiated by the 
people, the legislature may exclude them from the ballot by hastily 
submitting the required number of constitutional amendments or 
laws. Or, if the number is limited to measures submitted by petition, 
the interests may fill the ballot with measures of their own — and post- 
pone action on the popular proposals. 

It is not well tli.at too many questions be voted on at the same 
election, but the difficulty lies in what limit shall be set, and who is to 
determine what measures are to be submitted if the limit is exceeded. 
There is little danger, however, from a multiplicity of measures. The 
people have a greater capacity for discrimination than they are given 
credit for — especially when proper publicity is provided for; and 
further, when legislatures do their duty, there will be little need for 
the employment of the initiative and referendum. If they do not, 
the free action of the people to obtain needed relief should not be 
limited by any arbitrary provision. 



new dan gees to majokity kule. 13 

Publicity. 

But if in the struggle to secure popular government we have 
excluded the ''restrictions and safeguards," so called, and an initia- 
tive and referendum amendment which gives the people the substance 
of power, not merely its form, there is one thing still necessary to insure 
the full benefits of the new system. There must be proper publicity. 
The people must be fully informed on the issues they are to decide at 
the ballot box. This is quite as necessary to guarantee a full vote on 
the measures as it is to educate the citizens as to the worth of these 
measures. 

It will not do to leave this matter to the newspapers and political 
orators, because the very interests which oppose direct legislation 
very largely control the press and opinion-forming agencies, and if 
the people are misinformed confusion and uncertainty will result. 
Nor will it suffice to publish the proposed measures in newspapers, 
being but $47,610.61 from 1904 to 1910, inclusive, during which time 
64 measures were submitted. Ihe Arkansas Legislature of 1911 
unfortunately adopted the newspaper advertising system, and this 
year it is reported that Secretary of State Hodges estimates the 
publishing of the measures will cost the State in the neighborhood 
of $100,000. 1 his is probably exaggerated. But much better pub- 
licity at a fraction of this cost could have been secured by the pam- 
phlet system. In Colorado the legislature, against the wishes of the 
friends of direct legislation, provided for newspaper advertising in 
the amendment itself when submitted to the people. Ihis year the 
legislature, in order to insure a vast expense and disgust the people 
with the initiative and referendum, submitted seven long measures. 
Ten important measures were initiated by the Direct Legislation 
League and several by other organizations. Ihe cost to the State 
will be enormous. This will be used as an argument against the 
principles of direct legislation. But the league has initiated an 
amendment to the amendment, providing for the Oregon pamphlet 
system, and this will be the last occasion for such expense if it is 
adopted by the people. 

So we see the same instinct which led the founders of the Con- 
stitution to provide no adequate means of informing the people of 
the transactions of the Federal Congress now leads the politicians 
to oppose an effective means of educating the voters on submitted 
measures. Every State legislature with the exception of Oregon, 
and recently South Dakota, has refused to adopt a modern system 
of publicity. Public intelligence is a dangerous thing for men who 
want to operate in the dark. 

The problem of successful popular government is to get the will of 
the people carried into effect promptly. Beyond question the " checks 
and balances" of the present representative system have been respon- 
sible for many of the evils from which we suffer to-day. It is impos- 
sible to get satisfactory representation with machinery so complex and 
cumbersome; hence arises the apathy of the public mind. After so 
many failures to adjust things, only to be defeated in the end, men 
exclaim, "What's the use?" 

It is not hkely that the best uncontrolled representative system 
that could be devised would meet the needs of to-day. So far- 
reaching and all-powerful is the influence of concentrated capital that 



14 NEW DANGERS TO MAJORITY EXILE. 

the power of the whole people directly and finally expressed is alone 
sufficient to cope with the situation. 

The rise of modern commercialism in the middle of the last century 
put a tremendous strain upon modern governments. The advent of 
the railroad, steam, electricity, the factory system, and the centrali- 
zation of capital brought private interests to the doors of the state- 
house seeking and securing privileges, legal rights, and protection 
which militated against the common welfare. 

In the Republic of Switzerland the danger to liberty and to the 
existence of democratic government from this source was early per- 
ceived. With characteristic promptness and thoroughness the Swiss 
people went directly to the root of the problem and deprived their 
representatives of the power to deliver them into the bondage of the 
few. They did this before the railroads, the banks, and the great 
stock companies, which correspond to our corporations, had secured 
control of their Government. It was in 1869 that the first modern 
initiative and referendum system was established in the Canton of 
Zurich. Within a very few years all the Cantons of Switzerland had 
followed suit. In 1874 the referendum, on petition of 30,000 voters, 
was made applicable to Federal laws. In 1891 the constitutional ini- 
tiative was apphed to national measures. Having the machinery of 
government wherewith to exert their power, the people of Switzerland 
have ruled. The '^ opulent minority " have not dominated the numer- 
ical majority. Capital has been subordinated to human welfare. 
Political corruption is practically unknown. It is an honor to serve 
the public. And however much critical investigators may find fault 
with particular statutes which have been adopted or rejected by the 
Swiss people, it remains true that the Swiss Government represents a 
majority of the Swiss people and that to-day it is the best governed 
and most democratic country in the world. 

In the United States we have let commercialism have full sway. 
We are endeavoring to regulate a power which has become stronger 
than the Government itself, by means of the political machinery of 
the eighteenth century. There is but one method by which at this 
late day the power of the people in government can be restored and 
the Republic saved from becoming a financial oligarchy. That is 
through direct action of the whole citizenship. The channel for that 
direct action is the initiative and referendum. A majority of the 
people see that the old channels are not sufficient. The new ones are 
being constructed. The problem is, Shall they be made strong and 
clear and permit a constant, authoritative and final expression of the 
will of the majority, or shall they be so restricted and hampered that 
the twentieth century will repeat the history of the nineteenth cen- 
tury and democracy fail because of undemocratic political machinery ? 

o 



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